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2021 DIGILAW 312 (ORI)

Sujata Mohanty v. Berhampur University

2021-07-14

B.R.SARANGI

body2021
JUDGMENT B. R. Sarangi, J. - The petitioner, by means of this writ petition, seeks to quash the communication dated 11.03.2019 at Annexure-7, whereby the Comptroller of Finance, Berhampur University has rejected the claim of the petitioner for family pension, and to issue direction to the opposite parties to sanction and disburse family pension in her favour within a stipulated period. 2. The factual matrix of the case, in brief, is that the petitioner is the daughter of late Sarada Prasad Mohanty, who was working as Professor in the department of Physics under Berhampur University and retired from service on 31.07.1999 on attaining the age of superannuation. Though the petitioner was married, her marriage was dissolved by a decree of divorce under Section 13(B) of Hindu Marriage Act on 12.05.1995 by the Court of learned Civil Judge (Sr. Division), Bhubaneswar in T.S. No.236 of 1998. As a consequence thereof, she stayed with her parents and was fully dependent on them. While she was so continuing, her mother, Renuka Mohanty and wife of late Sarada Prasad Mohanty expired on 28.08.2010. Accordingly, her father submitted an application for change of nomination in favour of the petitioner for acceptance as nominee to receive family pension, whenever it would have become due and such proposal was considered and duly accepted by the authority vide Annexure-2 dated 01.07.2015. Consequentially, opposite party no.1 communicated the same to the Comptroller of Finance, Berhampur University stating that pursuant to Pension Amendment, 2011 by the Government of Odisha O.M. No.32745/F dated 23.07.2011, the Vice-Chancellor allowed the petitioner, the divorced daughter of late Sarada Prasad Mohanty, to be the next recipient of family pension as nominated by him. 2.1. Prof. Sarada Prasad Mohanty expired on 06.06.2018 leaving behind two major sons and two married daughters besides the petitioner, as per the legal heir certificate dated 28.12.2018 in Annexure-4 granted by the competent authority, namely, Revenue Officer in Miscellaneous Certificate Case No.e-LHC/44 of 2018 in prescribed Form-II under Rule-3 only for the purpose of family pension. Due to death of the pensioner, the family pension became payable to his family i.e. the petitioner, as she was nominated to be the next recipient pursuant to Annexure-2 dated 01.07.2015. Due to death of the pensioner, the family pension became payable to his family i.e. the petitioner, as she was nominated to be the next recipient pursuant to Annexure-2 dated 01.07.2015. Consequentially, the petitioner approached the authorities by filing representations annexing all the relevant documents, as required, including the income certificate dated 06.12.2018 issued by the Revenue Officer, legal heir certificate dated 28.12.2018 and the affidavit dated 18.01.2019 indicating "no objection" executed by all her brothers and sisters to sanction and disburse family pension in her favour. Pursuant to letter in Annexure-2 dated 01.07.2015, in spite of repeated approaches, when the authorities did not consider her grievance, she approached the Vice- Chancellor-opposite party no.2 by filing a representation on 04.02.2019. Pursuant thereto, opposite party no.3 communicated, vide letter dated 11.03.2019 under Annexure-7, to the petitioner that her claim for family pension, as divorced daughter of Late Sarada Prasad Mohanty, Retd. Professor of the University and consequent pensioner cannot be considered as per the provisions of OCS (Pension) Rules, 1992 and further amended vide notification No.32745/F dated 23.07.2011 of Finance Department, Govt. of Odisha in rule-2, sub-rule (1) in clause (b)iii, as she has income for livelihood as per the copy of income certificate provided by her. Hence this application. 3. Mr. C.R. Swain, learned counsel for the petitioner argued with vehemence that the reasons assigned for rejection of the claim of the petitioner for grant of family pension pursuant to Annexure-7 dated 11.03.2019 cannot sustain in the eye of law. It is contended that the petitioner has produced the income certificate issued by the competent authority showing her annual income of Rs.40,000/- from agricultural land, which is Rs.3,333/-per month. As per Rule 56(5) (e) of Orissa Civil Services (Pension) Rules, 1992, a divorced daughter having income less than Rs.4,440/- per month is eligible to receive family pension. Thereby, there is non-consideration of the provisions of law. Consequentially, the order impugned has been passed without application of mind and the same should be quashed. It is further contended that when the Government intends to extend the benefit of family pension in a specific manner and has fixed the criteria for the same, which the University has also accepted, the authorities have no option to change the criteria either to extend or curtail the benefit as per their sweet will. It is further contended that when the Government intends to extend the benefit of family pension in a specific manner and has fixed the criteria for the same, which the University has also accepted, the authorities have no option to change the criteria either to extend or curtail the benefit as per their sweet will. It is further contended that pension is a statutory right and also is a property. By rejecting the prayer of the petitioner for family pension on erroneous assumption of law is violative of Article-21 and 300-A of the Constitution of India. Therefore, the petitioner seeks for quashing the order impugned dated 11.03.2019 under Annexure-7 issued by opposite party no.3 and further seeks direction to the opposite parties to extend the benefit of family pension as due admissible to her. 4. Mr. B.S. Mishra-2, learned counsel appearing for Berhampur University, with reference to counter affidavit filed on behalf of the opposite parties, contended that whether the petitioner has remarried or not, nothing has been placed on record. She has also not disclosed either with regard to her income from any other sources or as to whether she has any other employment or not. The income certificate granted by the Revenue Officer in Annexure-5 dated 06.12.2018 cannot be taken into consideration, as he has given consolidated annual income of Rs.40,000/- from agricultural land without application of mind. More so, whether the petitioner has received any alimony due to divorce, that has not been specifically indicated. He further contended that the total extent of immovable property of her father has also not been disclosed nor the same has been stated in Annexure-5 so as to entitle the petitioner to claim family pension. Thereby, he seeks for dismissal of the writ petition. 5. This Court heard Mr. C.R. Swain, learned counsel for the petitioner and Mr. B.S. Mishra-2, learned counsel for opposite parties. Pleadings have been exchanged between the parties, with their consent the matter is being disposed of finally at the stage of admission. 6. Thereby, he seeks for dismissal of the writ petition. 5. This Court heard Mr. C.R. Swain, learned counsel for the petitioner and Mr. B.S. Mishra-2, learned counsel for opposite parties. Pleadings have been exchanged between the parties, with their consent the matter is being disposed of finally at the stage of admission. 6. For just and proper adjudication of the case, relevant provisions of OCS (Pension) Rules, 1992 are quoted below: "Rule-2(1)(b)(iii):- in case of unmarried / widowed / divorced / disabled widowed / disabled divorced daughter even after attaining the age of twenty five years, until she gets married / re-married or starts earning her livelihood as provided in rule 56 or till her death whichever is earlier. (Vide Finance Department Notification No.32745/F., dtd.23.07.2011 SRO No 660/2011) xxx xxx xxx Rule-56(2)(c):- after retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter IV other than the pension referred to in rules 43 and 44 the family of the deceased shall be entitled to family pension, the amount of which shall be calculated at a uniform rate of 30% of emoluments in all cases and shall be subject to minimum of Rs. 3500/- having no maximum limit w.e.f. 01.01.2006 or as may be notified by the Government from time to time. (Added vide Finance Department Notification No.24142/F., dtd.04.09.2015). xxx xxx xxx Rule-56(5)(d):- 56 (5) (d) - In the case of an unmarried daughter even after attaining the age of twenty five years till her marriage or death whichever is earlier subject to the condition that the monthly income of such daughter shall not exceed Rupees Four Thousand Four Hundred and Forty per month from employment in Government, semiGovernment, Statutory Bodies, Corporation, Private Sector, Self-employment. Salary / income certificate shall be obtained from the employer in case when the incumbent is under the employment in Government, semiGovernment, Corporation, Private Sector. In case she is self-employed or is in receipt of income from known sources other than employment, statutory authority issuing the income certificate shall be the competent authority to issue such certificate after causing due inquiry and calling for any records or reference to be satisfied enough to issue such certificate. In case she is self-employed or is in receipt of income from known sources other than employment, statutory authority issuing the income certificate shall be the competent authority to issue such certificate after causing due inquiry and calling for any records or reference to be satisfied enough to issue such certificate. (vide Finance Department Notification No.32745/F., dtd.23.07.2011 shall come into force on the date of their publication in the Orissa Gazette i.e. w.e.f. 12.08.2011 also vide F.D. O.M. No8133/F., dated 20.03.2013). xxx xxx xxx Rule-56(5)(e): In the case of widowed / divorced / disabled widowed / disabled divorced daughters even after attaining the age of twenty five years till their remarriage or death whichever is earlier subject to the condition that in case of divorced daughters / disabled divorced daughter, the divorce is valid in law and the case of widowed / disabled widowed daughter, the family pension for life from the date of death of her husband and there is no 43 other eligible unmarried daughter beyond the age of twenty five years and disabled son / disabled unmarried daughter to receive the family pension. The benefit of family pension for life shall be admissible to the widowed / divorced daughter only after cessation of the claim of disabled widowed / disabled divorced daughter. The other conditions governing grant of family pension to the unmarried daughters as specified in clause (d) shall also be applicable in the case of widowed / disabled widowed / disabled divorced daughters for grant of family pension in their favour. (vide Finance Department Notification No.32745/F., dtd. 23.07.2011)." 7. In view of aforesaid provisions, a divorced daughter shall be entitled to get family pension subject to condition that her monthly income does not exceed Rs.4,440/- from employment in Government, semi- Government, statutory bodies, corporation, private sector, self-employment. Salary/income certificate shall be obtained from the employer in case the incumbent is under the employment in Government, semi Government, Corporation, Private Sector. Therefore, the income certificate produced by the petitioner, which has been annexed as Annexure-5 to the writ petition, indicates that the annual income of the petitioner from agricultural land is 40,000/-. If the said income is calculated on monthly basis, it comes to Rs.3,333/- i.e. below Rs.4,440/- per month as required under clause (d) of Rule-56(5) of the Rules mentioned supra. Thereby, the petitioner satisfies the requirement of getting family pension. 8. If the said income is calculated on monthly basis, it comes to Rs.3,333/- i.e. below Rs.4,440/- per month as required under clause (d) of Rule-56(5) of the Rules mentioned supra. Thereby, the petitioner satisfies the requirement of getting family pension. 8. Coming to the contention raised that the petitioner has not stated about her remarriage, the onus lies on the opposite parties to substantiate such stand by adducing documentary evidence and in absence of the same, as the petitioner specifically claimed that she is the divorced daughter of the pensioner late Sarada Prasad Mohanty, question of her remarriage by the time of making application does not arise. It is further contended that she has not made other legal representatives as parties to the writ petition. Such a stand has no leg to stand, as because the petitioner has filed an affidavit in Annexure-6 dated 18.01.2019, where other legal representatives have given no objection if the benefit of family pension is extended to the petitioner and, as such, they may not be necessary parties to the present proceeding, as they have no objection to the same. Furthermore, it is incumbent upon the petitioner whether to make them parties or not, reason being, since other legal heirs have executed no objection certificate in her favour, such fact might have prompted the petitioner not to make them parties to the writ petition. It is also of relevance to note that none of the legal representatives has raised objection in the affidavit filed as Annexure-6 with regard to receipt of family pension by the petitioner. Therefore, even if they are not made parties in the writ petition, they will not affect the petitioner in any manner. More so, during his lifetime the father of the petitioner, namely, Late Sarada Prasad Mohanty nominated the petitioner, his divorced daughter, to be the next recipient of family pension. Consequently, other legal heirs may not have any claim, as the family pension has to be granted only in favour of the petitioner, as a result they may not be necessary parties to the proceedings. 9. As regards the claim made, that the State Government has not been made a party, it can be safely stated that in the instant case relief has been sought against opposite parties no.1 to 3 and, therefore, the State Government has no role to play. 9. As regards the claim made, that the State Government has not been made a party, it can be safely stated that in the instant case relief has been sought against opposite parties no.1 to 3 and, therefore, the State Government has no role to play. As such, no fault can be found with the petitioner for non-impleation of the State Government as a party to this writ petition. In the counter affidavit, the opposite parties have taken a stand that the petitioner has not shown income from any other sources, such a stand also cannot be considered at this stage, because the income certificate, which has been produced under Annexure-5 has been issued by the competent authority providing the annual income of the petitioner which should be accepted. 10. Some of the relevant provisions of the Odisha Miscellaneous Certificates Rules, 2017, which was framed by the Revenue & Disaster Management Department vide resolution dated 31st March, 2017, are extracted hereunder:- "2. Definitions: - In these rules, unless the context otherwise requires - (a) "Certificate" means a miscellaneous certificate specified in rule 3; and xxx xxx xxx 3. Categories of miscellaneous certificates:- (1) Subject to the provisions hereinafter contained, a Revenue Officer shall be Competent to grant following categories of miscellaneous certificates, namely:- i) xxx xxx xxx (ii) Legal heir certificate (Form No. II) (iii) Income certificate (Form No. III) xxx xxx xxx Note: (a) xxx xxx xxx (b) Legal heir certificate shall be granted for - (i) drawal of pension, gratuity, arrear salaries, provident fund; (ii) receipt of Government assistance, ex gratia payment; (iii) withdrawal of money from financial institutions and post offices where the amount involved does not exceed one lakh rupees; and (iv) transfer of name in case of basic amenities like electricity connection, water connection, etc.: Provided that in disputed cases the applicants may be advised to approach the Civil Court for issue of succession certificate. Provided further that the succession certificates, which are governed under the provisions of the Indian Succession Act, 1925 shall not be granted by the Revenue Officers. Provided further that the succession certificates, which are governed under the provisions of the Indian Succession Act, 1925 shall not be granted by the Revenue Officers. (c) In case of income certificate,- (i) where income is accruable from immovable property, the income certificate shall be granted by the Revenue Officer within whose jurisdiction such property situates; (ii) where the income is accruable from movable property or from profession, trade or business or calling, occupation, the income certificate shall be granted either on the basis of income tax return or other documents, if any, to the satisfaction of the Revenue Officer by making such inquiry as he deems proper; and (iii) where income is accruable to a person byway of salary, wages or remuneration in whatever form from Government service / Public Sector Undertaking/ Local Authority or Private company or the like, the income certificate shall be granted , if such person produces the certificate issued by the employer; (d) While issuing solvency certificate immovable properties situated within the operational jurisdiction of the Revenue Officer concerned shall only be taken into account after careful verification." 11. In view of the aforesaid provisions, after the death of the father of the petitioner, she produced legal heir certificate vide Annexure-4 dated 28.12.2018 and such certificate is granted for the purpose of drawal of pension, gratuity, arrear salary, provident fund, etc.. Similarly, Annexure-5 dated 06.12.20218 is the income certificate issued by the competent authority where the income is accruable from immovable property and movable property. These certificates are to be granted by the Revenue Officer within whose jurisdiction such property is situated. Thereby, keeping in view the aforesaid provisions, if the income certificate has been granted by the competent authority, there is no reason to disbelieve the same. More so, since income of the petitioner is less than the income, which has been prescribed under the rules, she is eligible to receive such benefits as due and admissible to her in accordance with law. 12. Admittedly, the petitioner's father was a pensioner after being superannuated from service as Professor in Physics from the Berhampur University. So far as meaning of pension is concerned, it has been decided in catena of judgments of the apex Court. Some of the relevant judgments are referred to hereunder for just and proper adjudication of the case itself. 13. 12. Admittedly, the petitioner's father was a pensioner after being superannuated from service as Professor in Physics from the Berhampur University. So far as meaning of pension is concerned, it has been decided in catena of judgments of the apex Court. Some of the relevant judgments are referred to hereunder for just and proper adjudication of the case itself. 13. In D. S. Nakara v. Union of India,1983 1 SCC 322, referring to Social Security Law by Prof. Harry Culvert, it is stated as follows: " 'Pension' is paid according to rules which can be said to provide social security law by which it is meant those legal mechanism primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the benefits in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed." 14. In State of Kerala v. Padmanabhan Nair, (1985) AIR SC 356, the apex Court observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. 15. In Vasant Gangaramsa Chandan v. State of Maharashtra, (1996) 10 SCC 148 , the apex Court held that pension is not bounty of the State. It is earned by the employee for service rendered to fall back, after retirement. It is a right attached to the office and cannot be arbitrarily denied. 16. In State of Punjab v. Justice S.S. Dewan, (1997) 4 SCC 569 , the apex Court held that conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and quantum of pension. The same view has also been reiterated in Dr. Uma Agarwal v. State of U. P., (1999) AIR SC 1212. 17. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and quantum of pension. The same view has also been reiterated in Dr. Uma Agarwal v. State of U. P., (1999) AIR SC 1212. 17. In Kerala State Road Transport Corporation v. K. O. Varghese, (2003) 12 SCC 293 , referring to corpus juris secundum, it is stated that the title "pension" includes pecuniary allowances paid periodically by the Government to persons who have rendered services to the public or suffered loss or injury in the public service, or to their representative; who are entitled to such allowances and rate and amount thereof; and proceedings to obtain and payment of such pension. 18. Further, referring to Halsbury's Law of England 4th Edn. Reissue, Vol.16, in the very same judgment in Kerala State Road Transport Corporation (supra), the apex Court held as follows: " 'Pension' means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the secretary of state is satisfied that it is to be paid in accordance with any scheme of arrangement having for its object or one of its objects to make provision in respect of persons serving in particular employments for providing with retirement benefits and, except in the case of such a lump sum which had been paid to the employee." 19. Considering the meaning attached to the word "pension", as stated above, and on analysis of the same, three things emerge; (i) that the pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is social welfare measure rendering social- economic justice to those who in the "hey days" of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon additional condition of impeccable behaviour even subsequent to retirement. 20. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon additional condition of impeccable behaviour even subsequent to retirement. 20. In U.P. Raghavendra Acharya v. State of Karnataka, (2006) 9 SCC 630 , the apex Court held that "pension" is treated to be a deferred salary. It is not a bounty. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on date of retirement. 21. Now, coming to the question of "family pension", it means a regular monthly amount payable by employer to a person belonging to the family of an employee in the event of his death. Therefore, vide letter dated 01.07.2015 issued by Registrar of the Berhampur University, on the basis of the request made by the pensioner to the authority for accepting petitioner as nominee, the Vice-Chancellor, pursuant to Pension Amendment-2011 by the Government of Odisha in OM No. 32745/F dated 23.07.2011, has allowed the petitioner, who is the divorced daughter of the pensioner, to be the next recipient of the family pension. Thereby, the entitlement of the petitioner has also been determined during the lifetime of the pensioner. So, when there is no objection from the other legal representatives to extend the benefit to the petitioner, particularly when the petitioner satisfies the income criteria as provided in the Pension Rules, mentioned above, the same should not have been denied by the authority. Therefore, the impugned communication dated 11.03.2019 under Annexure-7, being an outcome of non-application of mind, is liable to be quashed and hereby quashed. The opposite parties are directed to calculate the pensionary benefits admissible to the petitioner and take necessary steps for payment of family pension to her from the date of her entitlement as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment. 22. The writ application is thus allowed. But there shall be no order as to costs. 23. 22. The writ application is thus allowed. But there shall be no order as to costs. 23. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.